You are here

Appellate Court Says National Park Service Violated First Amendent By Requiring Permits for Free Speech

In a case born right under the noses of some of the country's most respected presidents, an appellate court has found that the National Park Service has violated the First Amendment rights of visitors who have something to say in the national parks. NPS photo.

In an ironic development considering its role in tracking the nation's history and its efforts to preserve civility in national parks, the National Park Service's practice of requiring permits for public gatherings, demonstrations, or "expressions of views" has been found to be unconstitutional by an appellate court.

In its 29-page ruling (attached below), a unanimous three-judge panel from the U.S. Court of Appeals for the District of Columbia Circuit found that the Park Service's permitting requirements were overly broad and "penalize a substantial amount of speech that does not impinge on the government’s interest."

For instance, wrote Judge Janice Rogers Brown, "(I)f a Girl Scouts leader musters her scouts onto a pavilion in a “free speech area” of Glacier National Park and proceeds to lecture them about the effects of global warming, she will have conducted both a 'meeting' and a 'gathering' (perhaps also an “assembly”) for which a permit would have been required. An elementary school teacher who leads eight students on an excursion to the Canyon de Chelly National Monument and, within a 'free speech area,' shows off her best imitation of a traditional Navajo dance presumably has hosted an unlawful 'demonstration.' If a believer in Creationism visits the Hagerman Fossil Beds National Monument and, within a 'free speech area,' quietly hands out literature disputing the theory of evolution, he is guilty of 'distribut[ing] . . . printed matter' without a permit.

"Under a plain reading of the NPS regulations, all of this speech is banned unless a permit is first acquired, even though none of it remotely threatens any of the government’s interests."

Furthermore, the judge wrote, “(I)t is offensive—not only to the values protected by the First Amendment, but to the very notion of a free society—that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so."

The ruling issued August 6 stemmed from a 2007 case in which a Minnesota man, Michael Boardley, and some associates tried to distribute pamphlets "discussing the Gospel of Jesus Christ" at Mount Rushmore National Memorial in South Dakota. While Mr. Boardley was handing out the literature in an area that park officials had set aside for "free speech" demonstrations, a ranger stopped him because he lacked a permit to do so, the ruling said.

How significant the ruling proves to be remains to be seen. According to a survey by a reporter for the McClatchy Newspapers, there are relatively few permits issued annually across the National Park System. While about two dozen are issued in Sequoia National Park every year and upwards of 100 in Great Smoky Mountains National Park, the bulk of those are to church groups that want to hold services in the parks, the newspaper chain found.

Ironically, the National Park Service has held programs to explain the history around the First Amendment. Just last month the agency released an on-line lesson plan delving into both the 19th Amendment, which gave women the right to vote, and the 1st Amendment, which pertains to both free speech and the right to assemble.

The lesson uses Washington, D.C.’s Lafayette Park, a statue-adorned landscape directly in front of the White House, as the jumping-off point for an exploration of the final years in the campaign for women’s voting rights. In January 1917, members of the National Woman’s Party (NWP), headquartered in a house-turned-office that faced the park, began to picket in that public space. They were exercising their First Amendment rights to speak freely, assemble, and bring petitions before the government, and their banners boldly addressed President Woodrow Wilson, whose speeches the suffragists would later burn in their struggle for political equality.

Comments

My understanding is that the permits are used so the park knows when this is going to be occurring so they can place extra rangers in the area in case something goes wrong. I've never known a 1st admendment permit to be denied. A lot of towns require permits as well for the same reason.

The meat of the ruling starts on page 18. What really bothers the judge is a lack of size limit for gatherings requiring permits. The parks have many reasons to need to know about large groups in advance, but they have no justification for not allowing a group of 8 people to gather at a picnic table. He was also bothered that the rules don't distinguish between areas like the Mall in Washington DC and small wilderness parks with fragile ecologies.

It should be easy for the NPS to keep the permit system for significant events and stay within constitutional boundaries.

Requiring a permit or notice of any kind is still an abridgment of the freedom of assembly. It is none of the government's business where and when people congregate. The Constitution does not give the government permission to regulate assemblies.

I'm relieved by this ruling! You should have seen what the National Park Service rangers did a few weeks ago at the MLK Center in Atlanta. They clearly violated the free speech rights of Alveda King, MLK's niece, and other pro-lifers who had permission to conduct a prayer service at MLK's grave. See articles and video below. The Park Service also threatened to arrest a group of high school students who started singing the national anthem at the Lincoln Memorial recently. The Park Service rangers need First Amendment education.

Small groups wishing to gather at national parks, including the Mall in Washington, no longer need to obtain a permit from the National Park Service, it was announced Thursday.

The change officially took effect Thursday and "allows for the spontaneity of First Amendment activities, preserving citizens' rights to free speech while allowing the National Park Service to protect the resources entrusted to our care," Park Service Director Jonathan Jarvis said.

Groups of 25 or fewer people may now demonstrate or distribute or sell printed material in designated areas of national parks and historic sites without a permit, according to interim regulations to be published soon in the Federal Register.